The RTI Act 2005 Case discussion - PowerPoint Presentation

Slide1

The RTI Act 2005

Case discussion

-

Anita

Karwal

9.8.19

Slide2

Flows from two Fundamental Rights

Article 19-Freedom of speech and expression:

Information is necessary to form and express opinions, dissent or support on any matter. It is therefore a part of Article 19 (1)(a)

Article 21-Right to life and liberty:

Information is necessary for protection of the right to life and liberty. It is therefore a part of Article 21

Slide3

3

Objectives

To set out a practical regime of

right to information

for citizens

To secure

access to information

under the control of public

authorities

To promote

transparency

and accountability in the working of every public

authority

To contain

corruption

To increase citizens’

awareness

and ability to exercise their other

rights

To equip them to

participate

meaningfully in the development process

Slide4

Logo

4

A very simple and iconic logo.

A

sheet of paper with information

on it, and the

authority figure behind it

– providing the information.

This represents the two key

stakeholders

in the process of

sharing information

under the RTI Act.

The solid form of

‘

i

’

is a very simplistic portrayal of the human form and can also be related to the ‘

i

’ for

information.

The bright blue color stands for transparency and purity (free from malpractices) of process.

Slide5

Section 2

Key definitions

Slide6

records

documents

memos

e-mails

opinionsadvicespress releasescircularsorderslogbookscontractsreportspaperssamplesmodelsdata material held in any electronic form andinformation relating to any private body which can be accessed by a public authority under any other law for the time being in force.

"information”

means

any

material in any form,

including

Slide7

includes –

(a) any document, manuscript and file;

(b) any microfilm, microfiche and facsimile copy of a document;

(c) any reproduction of image or images embodied in such microfilm (whether enlarged or not); and (d) any other material produced by a computer or any other device.

7

"record"

(

s.

2

)

Slide8

8

Sprit of RTI

Section 4 Provide as much information suo moto to the public at regular intervals through various means of communication so that Public have Minimum Resort to the Use of RTI Act to obtain Information – Sec 4(2)For the purposes of Section 4(1), every information shall be disseminated widely and in such form and manner which is easily accessible to the public

- Sec 4(3) Materials to be disseminated with following consideration:

Cost Effective Manner

Local Language

Most effective Method of Communication

Available ‘Free’

or

‘For a Cost’

- Sec 4(4)

Slide9

Deemed PIO

Any officer,

whose assistance has been sought under sub-section (4), shall render all assistance to the PIO seeking his or her assistance and for the purposes of any contravention of the provisions of this Act, such other officer shall be

treated as a PIO

. s.5(5)

Slide10

Disposal of Request (

s

.

7

)Time limit for giving information

30 days

If information concerns life and liberty of a person

must be given within 48

hrs

If information is given by third party then invite objections if any

add 10 extra days

No action on application for 30 days

deemed refusal

If additional fee required

Period from fee requisition to fee payment excluded from 30 days

Slide11

An information shall

ordinarily

be provided in the

form in which it is sought unless it would

disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question.

s.

7(9)

Slide12

Exemption from disclosure

of

information

There shall be no obligation to give any citizen-

a)

information, disclosure of which would prejudicially affect the sovereignty and integrity

of India, the

security

,

strategic

,

scientific

or

economic

interests of the State, relation with

foreign State

or lead to

incitement

of an offence.

s

.8 (1)(a)

Slide13

(b) information which has been expressly

forbidden to be published

by any court of law or tribunal or the disclosure of which may constitute

contempt of court

. (c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature. (

d) information including commercial confidence, trade secrets

or

intellectual property

, the disclosure of which would harm

the

competitive position of a third party, unless the

competent

authority is satisfied that

larger public interest

warrants

the disclosure of such information;

(e

)

information

available to a person in his

fiduciary relationship

,

unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information

Slide14

(f) information received in confidence from

foreign Government

.

(g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes.

(h) information which would impede the process of investigation or apprehension or prosecution of offenders;

(

i

)

cabinet

papers

including records of deliberations of the

Council

of Ministers,

Secretaries

and other officers:

But

the decisions of Council of Ministers, the reasons thereof,

and

the material

on

the basis of which the decisions

were

taken shall be made public

after the decision has been taken, and the matter is complete, or over.

Slide15

(j) information which relates to

personal information

the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the

privacy

of the individual unless the PIO is satisfied that the larger public interest justifies the disclosure of such information The information

which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding

anything in the Official Secrets Act nor

any of the exemptions permissible in accordance with

s

.8

(1),

a public authority may allow access to information, if

public interest in disclosure

outweighs the harm to the protected interests.

s

.8(2)

Slide16

Penalties

The CIC/SCIC shall impose a penalty of

Rs

. 250/- per day

Total amount will not exceed Rs 25,000 for–Not furnishing information in 30 daysMisleading the applicantProviding wrong information

Not publishing information suo motuNot computerizing data and uploading on website

CIC/SIC empowered to impose penalty on PIO. They can also recommend

disciplinary action against an erring PIO.

Slide17

Case

–

1

In the case of Sh. A.P.

Tripathi Vs.IIT Delhi. (No.CIC /OK / A ? 2006 / 00655) dated. 28 March 2007

Slide18

The applicant had applied for long list of varied information pertaining to GATE and JEE for the last 20 years. It was held by the commission that this amounted to a making a mockery of the Act.

It

must be remembered that though the Respondents are duty bound to supply information asked for by the Appellants, the Appellants are also required to keep in mind the objectives of the RTI Act as outlined in the Preamble to the Act: and that is, to introduce the elements of transparency and accountability in the functioning of the public authorities and to contain corruption. The Commission failed to appreciate how these objectives would be met with if the Appellant asked for such diverse and lengthy

information which seemed to be designed only to put the public authorities under undue and uncalled for pressure.

In this particular case, the Commission, in fact, appreciated the effort of the public authority to collect and provide as much information to the Applicant as possible and dismissed the case as frivolous and inconsequential. Such an application could not have possibly served any public interest. If applications of this sort are entertained then half of the governmental department will be engaged in collecting data only that too for no cause.

Slide19

Case – 2

Information can be called from Private Body

Jehangir

B.

Gai Vs. Bureau of Secondary Education, Ministry of HRD Dated 21.07.2006

Slide20

PIO

informed the applicant that the

Council for the Indian School Certificate Examinations (CISCE) is an autonomous body

, not answerable to the Ministry of

HRD.The Commission came to the conclusion that prima facie the CISCE is not covered by the definition of a public body since it is neither funded nor controlled by the Government or any other public body. However, going by the definition of the term information under Section 2(f) of the RTI Act, which includes ‘information relating to any private body which can be accessed by a public authority under any other law for the time being in force’, the respondents were directed to obtain the information from the CISCE within 15 days and supply it to the Appellant within 21 days of the issue of this order.

Slide21

SC: UPSC Marks can’t be disclosed mechanically under RTI

Union

Public Service Commission etc. vs.

Angesh

Kumar & othrs. Case – 3

Slide22

Candidates in the Civil Services (Preliminary) Examination, 2010 approached the High Court for a direction to the Union Public Service Commission (UPSC) to

disclose the details of marks (raw and scaled

) awarded to them in the Civil Services (Prelims) Examination

2010, the

information in the form of cut-off marks for every subject, scaling methodology, model answers and complete result of all candidates were also sought. Learned Single Judge in the case had directed that the information sought be provided within fifteen days and the said view was also affirmed by the Division Bench of the High Court. The SC decided: That weighing the need for transparency and accountability on the one hand and requirement of optimum use of fiscal resources and confidentiality of sensitive information on the other, information sought with regard to marks in Civil Services Exam cannot be directed to be furnished mechanically. That furnishing raw marks will cause problems which would not be in public interest. However, if a case is made out where the Court finds that public interest requires furnishing of information, the Court is certainly entitled to so require in a given fact situation. That if rules or practice so require, certainly such rule or practice can be enforced.

Slide23

In

the case of

Dhananjay

Tripathi Vs. Banaras ;Hindu University (Decision No.CIC / OK / A /00163) Dated 7.7.2006 Case – 4

Slide24

Shri Yogesh Roy, a student of the Banaras Hindu University (BHU), died on the night of 11.1.05 at Sir Sunder Lal Hospital attached to the University, where he was admitted during the day.

The

students alleged that Yogesh Ray died due to the negligence of the doctors on duty in the Emergency Ward. This led to rioting at the Hospital leading to police intervention.

The

then Vice Chancellor of the University asked Prof. Harikesh Singh on 12.1.05 to hold an inquiry into the incidents. He along with the Deputy Registrar (Academic) started the inquiry on 17.1.05 and submitted his report to the Vice Chancellor/Rector on 31.3.05. Shri Dhananjay Tripathi applied to the PRO, BHU, on 14.10.05 for access to the Prof. Harikesh Singh Inquiry Report into the incident. On 6.01.06, the PIO was asked to communicate the denial of the information to the Requester under section 8(1)(g) of the Act. The PIO sought clarification from the Registrar as to how Section 8(1)(g) was applicable. Instead of reconsidering the matter, the Registrar reprimanded the PIO. The Commission, therefore, was compelled to observe that the Registrar had taken recourse to the provisions of Section 8(1)(g) and 8(1)(h) merely as a pretext to deny the information. It is difficult to comprehend why the Registrar sat over the fact-finding Committee’s small report for fifteen months without taking any action even after there was an RTI application.

Slide25

The Supreme Court in the matter of

Central

Board of Secondary Education &

Anr

. Vs. Aditya Bandopadhyay & ors. (Civil Appeal NO.6454 of 2011)

AndSh. Vibhor Dileep Barla Vs Central Excise & Customs (Appeal No. CIC/AT/A/2006/00588 dated 9 July2007

Case – 5

Slide26

Asking questions in the form of

inquiries

The Act does not make it obligatory for the public authority to

create information. Hence information means any material in existence and an inquiry cannot be treated as available information

Slide27

At this juncture, it is necessary to clear some misconceptions about the RTI Act.

The

RTI Act provides access to all information that is available and existing. This is clear from a combined reading of section 3 and the definitions of 'information' and 'right to information' under clauses (f) and (j) of section 2 of the Act.

If

a public authority has any information in the form of data or analyzed data, or abstracts, or statistics, an applicant may access such Information, subject to the exemptions in section 8 of the Act. But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non available information and then furnish it to an applicant.

Slide28

A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or "advice' in the definition of (information' in section 2(f) of the Act, only refers to such material available in the records of the public authority

.

Many

public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."

Slide29

Sanjeev Kumar

vs. CBSE

,

Delhi Appeal No.:-CIC/CBSED/A/2017/195101-BJ, Date of Decision :16.02.2018

Case – 6

Slide30

Suo Moto Disclosure Of Information By CBSE Affiliated Schools

The

Commission advised CBSE to instruct the schools affiliated to the Board to periodically suo

moto

disclose all information regarding the Student Intake and other such related information by them to the Board as also upload details on their website keeping in view the spirit of the RTI Act, 2005 and the larger public interest involved in such matters.

Slide31

Subhash Chandra Tyagi 

vs.

 CBSE

,

CIC/SA/A/2016/001451,Date of Decision 21.07.2016 Case – 7

Slide32

Academic/Educational Qualifications as Public Documents cannot be withheld as Third Party Information

The Commission holds and declares that academic/educational qualifications at land mark stages like 10

th

class, Intermediate, Graduation, Post Graduation or Ph.D. and clearing of every annual examination, which promotes the student into next year, are the public documents.

If a student is suspected to have manipulated his promotion from one to next year, another has every right to seek its verification and it is the duty of the public academic body to clear the apprehension and take necessary action, if apprehension is proved correct. If educational details are protected as personal information, manipulation, corruption and misrepresentation, it is in larger public interest, we need to avoid it. To prevent cheating, the transparency is the proper method. The Commission thus directed the CBSE to consider this as complaint, verify the records, examine the allegation and inform the appellant whether the certificates and memorandum of marks issued to Kamal Tyagi are genuine or not.

Slide33

Vijay Kumar Mishra, Samastipur Vs. Central Board of Secondary Education, Patna

 

CIC/RM/A/2014/000014­SA

Dated

 03.12.2013 Case – 8

Slide34

Obstructing Information through complex procedures

 

The Commission, thus, holds that the undertakings prescribed by the CBSE for giving information have the effect of seriously obstructing the access to information beyond what was permitted by the Right to Information Act, 2005.

By

prescribing such rules and imposing conditions such as above, the CBSE tried to legislate something which is not prescribed or authorized by the Parliament through the Right to Information Act, 2005. The Public Authority can only deny the information under Sections 8 and 9 of the RTI Act. The Commission further directs the CBSE to pay a compensation of Rs.25, 000/­ to the appellant within 15 days from the date of receipt of this order for harassing applicant to sign illegal undertaking to give up rights. The Commission directs the CBSE to furnish the certified copies of the answer scripts as required to the appellant, free of cost, within 21 days from the date of receipt of this order.

Slide35

Case 9

Asking for personal information of employees

Slide36

Case – 17

Deshpande

Vs. CIC, SLP No.27734/2012 in the Supreme Court of India

.The petitioner had submitted an application before the Regional Provident Fund Commissioner, calling for various details of an employee in the Sub-Regional Office.The Supreme Court went into the matter as to what can be treated as personal information and what is fiduciary relationship. The Supreme Court has ruled as follows:

Slide37

Information related to memos issued, show cause notice and orders of

censure/punishment considered to

be personal information under section 8(1)(j

).

The performance of an employee or an officer in an organization is a matter between the employee and the employer, and its disclosure has no relation ship to any public activity or public interest. In stead this disclosure would cause unwarranted invasion of the privacy of that individual. Therefore it need not be disclosed unless the PIO feels that it involves larger public interest. However, larger public interest cannot be claimed as a matter of right by application. The Income Tax Returns are personal information.The applicant was not able to establish that any of the information was in larger public interest; therefore, the Supreme Court dismissed the petition.

Slide38

Case – 10.

Request

for information covering the entire gamut of functioning of organization.  

Slide39

In the case of Sh. Hitesh Kumar

Vs

Oriental Insurance Company Ltd. (Decision No. 570/ICPB/2007

F.No.PBA

/06/562 dt. 15th June, 2007). The Insurance Company expressed their inability to collect voluminous information as it is beyond available fiscal and human resources. The judgment of the Commission was in full agreement.

Slide40

Case – 11

Applicant seeks answers for who is responsible for delay and who has authority to pass certain

orders

Slide41

In the case of Sh.

Saidur

Rehman

Vs CIC (Appeal Nos.CIC/AA/A/2006/00032 & 00034 dated 22 June, 2007).Prima facie RTI is not about seeking answers or asking questions. The PIO cannot answer questions regarding interpretation of law or correctness or otherwise of a decision.

Slide42

Case – 12

Applicant demanded for copy of file

notings

.

Slide43

In the case of

Shg

.

Pyare

Lal Verma Vs Ministry of Railways (CIC Appeal No.CIC / OK/A/2006/00154 dt.2 Jan 2007). The definition of the words “information” and “record” are inclusive definitions. Therefore unless “file notings” are excluded specifically from the word “file”, “file” would include both the “correspondence” and “notings”.

Slide44

Case – 13

A single applicant in a single application asked for information on several subject matters.

Slide45

In the case of

Shri

Rajendra

Singh Vs. Central Bureau of Investigation, (CBI) Complaint No.CIC/WB/C/2007/00967 dated 17.12.2007. It is not open to the applicant under RTI Act to bundle a series of requests of separate subject matters into one application unless these requests are treated separately and paid for accordingly. However an application may be comprised of a question with several clarificatory and supporting questions on the same item.

Slide46

Case – 14

Access to minutes of meetings relating to employees.

Slide47

In the case of

Shri

M.S.

Sidhu

, CPIO, Oriental Bank of Commerce, Appeal No.CIC / PB / A / 2008 / 01274 & 01275-SM.In the case of access to minutes relating to grant of VRS of an employee, the public authority claimed that they have taken decision not to disclose the same as it was not related to any public activity. The Commission did not agree with this contention.

Slide48

Case – 15

Seeking information from a public authority as an

officer,

and sending letter in official letter head.

Slide49

In the case of Ms. J.D.

Sahay

Vs. Ministry of Finance (Appeal

No.CIC

/AT/A/2008/00027 & 33 dt. 6.2.2009)In a case an application was rejected on the ground that it was submitted by an official letter head on the plea that the information has not been asked by a citizen of India.In the judgment it was clarified that even though the official letter head was used payment of fee was done from personal funds and that is good enough to establish that it is an application submitted by a citizen under the Act.

Slide50

Case – 16

Request for vigilance Report of the public authority for obtaining the first stage advice

of CVC

and copy of the CVC first stage advice .

Slide51

In the case of Sunil Kumar

Bansal

Vs. Southern Railways, Chennai (

F.No.CIC

/OK/A/08/00893-AD dated 15.5.2009).The CIC ruled that since the investigation in the case was over and appellate had been charge-sheeted, the information should be disclosed. Further no fiduciary relationship exists as the CVC has inquired into the whole incident, prepared the inquiry report and handed it over to the Railway Authorities.

Slide52

Case – 17

Request for

undisclosed

vigilance report

findings

Slide53

In the case of P.K.

Rana

Vs. CPIO, Delhi Police and AA, Delhi Police (Appeal

No.CIC

/AT/A/2006/00322 dated 11.12.2006).The CIC held that information on the “findings” of the vigilance report can be disclosed to the appellant and is not prohibited by section 8(1)(h) of the Act.

Slide54

Case – 18

Request for disclosure for copies of Confidential

Report

Slide55

In the case of N.

Krishnamoorthy

Vs. MTNL, Mumbai (F.,

No.CIC

/AD/A/X/2009/000154 dated 24.3.2009.The Commission has held that complete information with certified copies of ACRs should be provided

Slide56

Case – 19

Frivolous applications such as asking for all the records regarding various services and categories of staff in the

Railways

Slide57

In the case of

S.K.Lal

Vs.Ministry

of Railways (Appeal No.CIC/OK/A/2006/00268-272 dated 29.12.2006. The CIC held that asking for all the records only amounts to making a mockery of the Act and need not be given.

Slide58

THANKS !